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CA Legalizes Recreational Marijuana as Laws Change Across the Country

With new year upon us many a law enacted over the last year will all be taking effect at once. Among all this newly effected legislation, marijuana laws have taken an enormous role. The legalization of marijuana has been a rolling stone steadily gaining momentum over the last several years–both for medical and recreational use–and this year has been no exception.

As the ball dropped in New York we also saw quite a few criminal restrictions on marijuana drop across the nation. Perhaps nowhere more so than in California where they took the enormous step of becoming the sixth state in the U.S. to permit the sale of marijuana at licensed stores. Obviously, it isn’t just that simple, not only is marijuana still Federally illegal and in the sights of Attorney General Jeff Session’s Department of Justice, the laws require quite a few provisions which are important to understand in the light of such a huge shift in the legal landscape. Let’s look at the new California law–as well as upcoming potential changes in other states–and see how these laws apply to you and your business considering state law and the federal government’s take on the issue.

The Basics of California’s New Law

At its simplest level, California’s new position on marijuana is nearly identical to its position on alcohol. As of around a week ago if you go into a licensed shop and you’re 21 years of age or older you can buy marijuana so long as you have a driver’s license or ID card with you–either a California license or another state license works. You don’t need a medical marijuana license anymore but, as we’ll discuss later, it’s a bit too early to be throwing away your medical marijuana licenses.

Although you can buy marijuana now, that doesn’t mean you’re free to go light up in front of a cop. In fact, it’s still California state law that it is illegal to smoke marijuana in a public place. This applies everywhere, even if you could legally smoke a cigarette at that place. The penalty for this is not particularly extreme, a $100-$250 fine, but it is still a crime and something to keep in mind. It is perfectly legal to consume marijuana in your home or another person’s private property.

In terms of the businesses selling marijuana, while there are some who are already set up with a license as some California cities are considering opening marijuana lounges along the lines of a hookah lounge, it’s not going to be as easy as simply sending an application to the Secretary of State and setting up the next day.

Even after a business entity is set up, sellers will need to register with the California Department of Tax and Fee Administration and seek a license from one of three entities–the Bureau of Cannabis Control out of the Department of Consumer Affairs, the CalCannabis Cultivation Licensing Program through the California Department of Food and Agriculture, and the Manufactured Cannabis Safety Branch through the California Department of Public Health.

marijuanaRight now, you can expect all these places to extremely backed up with requests for licenses. Even once a business has a license, they need to be permitted with the city or county they plan to do business in–a matter that is complicated by the fact that many California cities are not currently allowing recreational dispensaries whatsoever.

At this point, mostly the same medical marijuana dispensaries that were already there. This being said, the cities that do allow recreational marijuana sales have generally already allowed these medical dispensaries to immediately move to recreational sales. It is also worth noting that California has now made the move of allowing cannabis trademarks, something that previously was a no-go.

Growing Marijuana Plants in Your Home

Growing your own marijuana in California is a bit of an odd issue as it’s primarily an issue that changes quite a bit from city to city and county to county. In theory, it has been legal for any 21 or older Californian to grow up to six plants per household since November of 2016. The only real proviso to this is that they must be kept out of sight of the public. The reality of the situation varies enormously based on local governments–some being incredible permissive and some much more restrictive. A few common local restrictions are permitting requirements, often expensive and difficult to obtain, and requirements that the plants are grown completely indoors.

Marijuana and Driving, Driving While High

First and foremost, don’t smoke marijuana and drive. It’s illegal and it’s irresponsible. However, to address the exact law on the issue, California now treats marijuana almost the same as alcohol you keep in your car. Just like you can’t have an accessible open container of alcohol in your car, you can’t keep an accessible open container of marijuana or any accessible means of consuming marijuana in your car.

As already mentioned, driving while impaired is absolutely a crime. However, it does raise some interesting legal issues. As it is, it is quite difficult for authorities to establish and measure current cannabis impairment. If an officer believes you are impaired, they will likely arrest you and–as it stands–if a blood test shows you have marijuana in your system a charge can be brought for driving while impaired.

A blood test is not a very reliable test of current impairment as it can show positive results from anything from 4 to 12 hours or–in the case of more regular users–several days. You can see the issue here, does a blood test really show whether you were currently impaired when you were pulled over?

What’s more, the usual tests for detecting impairment applied by law enforcement officers are not tuned to detecting marijuana impairment. In Massachusetts, the Massachusetts Supreme Judicial Court has already ruled that the field sobriety tests generally used by police officers as part of traffic stop cannot be evidence of driving under the influence of marijuana. This is likely an issue that will develop in the California courts over the next year or two, but is unresolved for now.

How Will Marijuana Impact Employment?

California, as is the trend across the nation, still allows employers to test employees for marijuana and fire, refuse to hire, or take other detrimental employment action against that employee or would-be employee based on the results. In fact, with some federal agencies this testing is required–not a surprise given marijuana’s federally illegal status.

However, it is a bit of an odd position given how close California’s treatment of marijuana is to alcohol at this point. It would be quite odd for an employer to act against an employee for drinking alcohol off duty if it didn’t affect that employee at work.

This treatment is a nationwide standard at this point. Not so long ago, the Massachusetts Superior Court dealt with this issue and took it even further by saying that an employer could take action against an employee prescribed marijuana as a medical treatment for Crohn’s disease and is under no obligation whatsoever to make the usual accommodations for a disability when it comes to marijuana.

Jeff Sessions Will Be Cracking Down

As marijuana legalization ramps up across the country, Attorney Jeff Sessions has left no question as to his position on it. Describing marijuana as equivalent to heroin and at one point controversially stating that he thought the KKK were ok people until he learned they smoked marijuana. Suffice it to say, he is not a fan.

This has manifested previously manifested itself in his Department of Justice taking the position that they will prosecute and seek the greatest possible sentences on all violations of federal marijuana possession laws–a policy opposite to the Obama administration’s approach of not prosecuting when an action was legal under state law.

Congress has not been entirely cooperative with his plan, giving the DOJ no money whatsoever to prosecute medical marijuana. However, this does not include potential prosecution over recreational use and, just last week, Sessions has announced that he will give federal prosecutors total discretion as to what to do when state and federal law contradicts on marijuana.

Jeff Sessions stance has drawn criticism from both Republicans and Democrats in the Senate. However, it is unlikely to change and will present something of a minefield as these types of laws move forward. Federal prosecutors seem unlikely to come down on individuals, but businesses selling recreational marijuana might be a different story.

Full Legalization is Spreading

If Sessions’ position is creating a minefield now, the next year of legislation is looking like it only be making the situation more complicated. At this point polls show that over 60% of U.S. citizens support full legalization for adults and the states are taking notice and moving to take advantage of the taxes to be earned on marijuana.

In the coming year Vermont, New Jersey, Maine Michigan, Delaware, Rhode Island, Connecticut, Ohio are all looking to legalize recreational marijuana in some form or another. Oklahoma, Kentucky, South Dakota, Utah, and Missouri voters will decide on medical marijuana. On July 1st of this year, Massachusetts makes the move hosting retail recreational marijuana brick and mortars. Marijuana is on the move in the U.S., make sure you know the law on the issue for where you live.

The Battle for the Internet: State Action on Net Neutrality

After the FCC ruling on net neutrality, several states have taken independent action to make these requirements a part of their state law and give you back the consumer protections that go along with net neutrality rules. For those unfamiliar with the situation, the FCC has recently repealed requirements that internet service providers (ISPs) not provide preferential treatment to different types of internet traffic, throttle users, or outright blocking content it doesn’t like. This repeal of consumer protections, despite substantial public outcry against the move from people of both political parties, opens the door for ISPs selling the internet in bundles like cable, censoring content by slowing it down or blocking it, and putting businesses over a barrel to force paid prioritization. The move incensed many politicians, as well as the public, and some have acted on the issue.

States which have taken legislative steps in the last week or so include New York, Washington, and California with California having two different laws to help maintain your protections. Several state attorney generals have also begun the process of bringing lawsuits challenging the FCC ruling. These laws and the lawsuits will both face serious challenges–both legal and political–if they hope to make any real headway. Let’s look at these recent steps and the stumbling blocks they will face as they move forward.

net neutralityProposed State Net Neutrality Laws

In California, lawmakers have approached net neutrality from two different angles. First, State Senator Scott Wiener out of San Francisco has proposed SB 822, was introduced on this last Wednesday–January 3rd–and approaches the issue as a regulatory issue through the California Public Utilities Commission. Another California Senator, Kevin de León out of Los Angeles, has introduced SB 460 which outright reenacts the consumer protection requirements of net neutrality as a state law requirement to operate in California. Since their recent proposal, quite a few lawmakers have asked to ask as co-authors to these laws.

Currently SB 822 is fairly simple, perhaps too much so to be effectively enforced. However, it will likely see substantial changes if it is ultimately passed. As it stands, it provides new duties to the California Public Utilities Commission (PUC). The PUC would oversee ISPs and ensure that they comply with the net neutrality provisions previously enforced by the FCC. Where the ISPs do not comply, the law would prevent them from receiving any state contracts, renewing California state franchises, or use any utility poles owned by California as part of their network. Taken together, these rules would represent both an extreme expense to ISPs and, in some situations, make operation within the state extremely logistically difficult.

SB 460, on the other hand, takes a more direct tact. It would outright make it illegal for ISPs to violate net neutrality provisions such as requiring businesses to pay for prioritization either to avoid throttling or to be given a internet “fastlane.” It would also make it illegal for ISPs to mislead the public as to their compliance with net neutrality rules, something that nearly every ISP has got in trouble for doing at some point or another.

As mentioned, these laws are simple at this point. However, both Senators associated with the bills have mentioned that they will take their time to ensure that the laws are thorough and address any current issues in their original drafts. These California senators are not alone. A Democratic Senator out of New York and a Republican out of Washington have both introduced similar laws in their respective states. New York has also considered rules denying state contracts to all ISPs who are not compliant with net neutrality rules.

The Difficulties These Laws Will Face

If passed, these laws will all face legal challenge–end of story. If not from the Trump administration and the FCC itself, the ISPs will sue. It would be ironic for Republicans, ostensibly the party of state rights, to come down on these laws. However, it seems very likely that these laws will face conservative judicial challenges. Conservative political interests and the Trump Administration have cracked down repeatedly on state laws such as sanctuary laws and legalized marijuana. This will very likely be the case for state net neutrality laws.

Once challenged, all these laws have a serious obstacle to overcome–the FCC ruling repealing net neutrality also specifically pre-empts state or local measures that would act contrary to the FCC ruling. This means that the FCC says that its own rules win in any conflict between its rules and laws like the ones that have been proposed. The FCCs pre-emption ruling covers both “requirements that [the FCC] has repealed or decided to refrain from imposing.” This basically covers all net neutrality provisions.

This pre-emption is likely to be enforceable in the courts. Federal law generally pre-empts state law. Broadband services are difficult for states to regulate where they cross state lines. Even when state laws deal entirely with in-state behaviors, their implications will effect multiple states and enter the realm of the federal and the FCC.

With the way the FCC net neutrality pre-emption policy is worded, such a challenge to these laws would be an uphill battle for the states. However, such a battle would not be impossible. These states will have to argue that the FCC does not have the power to pre-empt them as they have. This position has some support. Just last year the 6th Circuit ruled that the FCC did not have the power to pre-empt Tennessee and North Carolina laws restricting the expansion of smaller ISPs–instead allowing larger ISPs such as Comcast to maintain their ironclad grip on territory. While this ruling is not necessarily for the best for consumers, it does establish the precedent that the FCC does not have blanket authority to pre-empt the states.

The court, looking the Telecommunications Act which governs the powers of the FCC, argued that the act had not delegated the power of pre-emption over the states to the FCC in clear enough terms to support such a power. This ruling supports the premise that the FCC cannot stop these state net neutrality laws.

Lawsuits Challenging the FCC Ruling

While lawsuits may be forthcoming once these state net neutrality laws are passed, there have already been lawsuits filed on behalf of a number of State Attorney Generals challenging the validity of the FCC’s recent net neutrality repeal. With substantial fraud in the comment process on the FCC net neutrality ruling–apparently both dead people and Obama himself opposed net neutrality all along–several states such as New York have brought lawsuits arguing that the FCC’s administrative process and decision making–both the speed with which a decision was reached and the reasoning behind the decision–in repealing net neutrality was so poor that it was “arbitrary and capricious.”

This arbitrary and capricious language is not out of nowhere, it is the standard by which FCC rulings would be judged by the courts. Unfortunately, this also means that these lawsuits are quite unlikely to succeed, arbitrary and capricious means the states would need to show that the FCC ruling essentially no rational explanation before the courts will decide to overturn the FCC. To say this is an incredibly low standard is an understatement.

The Loss of Net Neutrality Has Damaged Consumers

While broadband providers touted the business advantages of removing net neutrality restrictions–creating jobs, lowering prices, and promoting increased investment in infrastructure–none of this has occurred. Comcast fired 500 employees right before Christmas, both Comcast and Dish Network increased their prices in the last few weeks, and the announced infrastructure investment for the next year is essentially the same as last year. All that the FCC’s net neutrality repeal has done is take away your consumer protections. The states are taking steps to bring those protections back. Any successes will be a long fought battle–we’ll have to wait and see if they end in victory.

Understanding California’s Sanctuary State Bill and it’s Impact on Local and Federal Law Enforcement

Last October, Governor Jerry Brown signed Senate Bill 54, or California Values Act, a law that would make California a sanctuary state. The new law went into effect after the New Year arrived. Although the effect and constitutionality of most new laws is often uncertain, California’s Sanctuary State law is actually easier to understand than most:

What Does It Mean to Be a Sanctuary State?

The California Values Act would prohibit California law enforcement agencies from using either personnel or funds to hold, question, or share information about people with federal immigration agencies. The new law provides a number of exceptions, such as conviction of one or more offenses from a list of 800 crimes outlined in the California Trust Act, including child abuse and drug trafficking.

In a non-sanctuary city or state, local police submitted the fingerprints of all persons booked in state or local jails to the federal government. If Immigration and Customs Enforcement (ICE) flagged a person as an illegal immigrant, the federal agency could ask the local jail to hold them until ICE could pick them up for federal detainment.

sanctuary stateUnder California’s new law, local and state police would be barred from submitting any and all fingerprints to ICE or providing any other free range assistance. Local and state police would only be permitted to submit a detainee’s fingerprint if the detainee had previously been convicted of a certain crime.

Are There Any Other Restrictions on California’s Law Enforcement?

Local and state police cannot give federal agents free access to personal information. All law enforcement agencies will be required to produce annual reports on their participation with federal agencies and how many people they transferred to immigration authorities during the year.

What are California Law Enforcement Allowed to Do?

As mentioned earlier, local and state police are still permitted to work with federal immigration efforts if the detainee was previously convicted of a serious crime, such as child abuse. Federal agents are still permitted access to state prisons and jails for the purpose of questioning immigrants. Finally, California cannot prohibit the federal government itself from entering the state and finding illegal immigrants. The sanctuary law only applies to state law enforcement because California only has power over state and local law officers.

Why Would a City or State Provide Sanctuary for Illegal Immigrants/Undocumented Persons?

State and local sanctuary laws would be justified for three different reasons: First, California has authority over its own police officers and can therefore decide whether its officers should work with the federal government or not. Second, state lawmakers believe that this measure would reduce local crime. Illegal immigrants might be hesitant to report crimes to police if they believe they will be deported as a result. Sanctuary laws would provide cover to illegal immigrants to report a robbery in progress or any information they might have about a crime that was committed. Finally, most governments are obsessed with documenting everything. Documenting state interactions with federal agencies might be valuable information for future reference.

What Does This Mean For Illegal Immigrants/Undocumented Persons?

The law would protect the private information of most persons in California if he or she were arrested, since state and local police would be barred from sending it to the federal government without showing the proper cause. Additionally, merely talking to local police would no longer be automatic grounds for deportation. Of course, if the illegal immigrant were convicted of a prior serious crime, the state police would still be permitted to contact ICE or other federal immigration enforcement.

Are Sanctuary Laws Constitutional?

California is currently engaged in numerous lawsuits with the federal government over its sanctuary laws. Most legal experts predict that California would prevail on whether it can prohibit its police from working with the federal government. The Supreme Court has ruled that while the federal government can bribe states into doing what it wants, the federal government cannot force them into taking certain actions.

The Court’s decision on the Affordable Care Act is an example of this: Originally, Obamacare as passed required that states expand their Medicaid coverage. The Supreme Court tweaked the law so that the coverage would be optional rather than mandatory because the federal government did not have to power to force states to accept Medicaid coverage, even if the federal government was paying for the expansion.

Similarly, the federal government cannot require that California (or any other state) work with ICE or other immigration enforcement agencies. A state can choose to cooperate with the federal government if it wants to, but if the state decides to close the door, that’s the state’s decision to make.

What Problems Could the Sanctuary Law Pose In the Future?

ICE has countered by threatening to make more public raids, including in schools and courthouses. The latter would likely raise further constitutional challenges, since such actions would impact a state’s ability to administer its legal system – a severe breach of state sovereignty. California Chief Justice Tani Cantil-Sakauye had previously condemned ICE agents for disrupting state court proceedings by arresting people inside California courthouses. Increased raids would disrupt state courts ability to call witnesses and prosecute crimes unrelated to immigration.

Roy Moore Loses Lawsuit as Doug Jones is Certified as the Next Alabama U.S. Senator

On December 12, 2017, Doug Jones won an upset special election to become Alabama’s next United States Senator. His opponent, Roy Moore, has refused to concede. Instead, the former state Chief Justice filed a lawsuit, demanding a new election because of alleged voter fraud, alleged voter intimidation, and an alleged polygraph test that purports to clear his name of the pedophile claims against him during the election. Judge Hardwick denied the request to halt certification with prejudice (prejudice means the lawsuit cannot be refiled even if its amended). Doug Jones became the first Democrat elected in Alabama in 25 years to the U.S. Senate.

roy mooreRoy Moore Refuses to Take “No” For an Answer

Roy Moore files surprisingly poor lawsuits, despite being elected Alabama’s Chief Justice twice. As Chief Justice, Moore must have been familiar with his own state’s jurisdictional laws. Court jurisdiction is the power of a court to make legal decisions over certain persons, geography, or subjects. A legislature can control a court’s power by expanding or narrowing its jurisdiction.

Alabama State Code Section 17-16-44 removes the court’s jurisdiction over elections. That means that state judges have no power to “inquired into, questioned or affected” state election results. Oddly, Moore fails to address this Section anywhere in his lawsuit. Instead, he cites cases from Indiana and Mississippi to argue that Alabama state judges have power to oversee Alabama election results. Moore’s failure to address this crucial issue – whether a state judge even has the power to overturn an election, resulted in his lawsuit’s dismissal.

Moore’s actual claims were also dubious. Moore bases his allegation of voter fraud on higher than usual turnout in certain state counties. Although special elections typically have very low turnout, the national attention this election received would logically upend that prediction. When the President of the United States involves himself in a controversial election, most people can foresee that turnout might be higher than normal.

Moore also claims that voter fraud occurred because people from outside the state voted in the election. Moore cites a news broadcast where a man said:

Because we came here all the way from different parts of the country as part of our fellowship. And, all of us pitched together to vote and canvass together, and we got our boy elected!

Ironically, the exhibit attached also included a paragraph by the Secretary of State where they investigated the man in question and found that he had been a resident and registered voter for a year.

Moore also attached an affidavit of a poll worker who testifies that they had much higher turnout than expected and that many of the licenses came from North Carolina and Georgia. Her testimony is a little strange; she claims to be nineteen (19) years of age and that she has over twenty (20) years of experience as a poll worker. The fact that there were licenses from North Carolina and Georgia is concerning at first. However, she also testifies that she was a poll worker at Montgomery County: there are several universities and colleges in the area. An election that received the national coverage Alabama’s special election received might lead to college students from out of state registering to vote. And yes, it is legal in Alabama for college students to vote in Alabama if they have an established intent to reside in Alabama.

Moore Was Behind Even Without the Sexual Assault Allegations

Moore’s second claim is about voter intimidation based on a YouTube ad that claims votes for Moore will be made public record. Moore claims this ad came from the Democratic Party, an allegation that is not actually relevant (the ad could have come from Senator Mitch McConnell and the judge would be obligated to treat it the same).

Voter intimidation was likely the argument that had the most legs. However, as Moore himself argued, these ads were coming from outside the state and there was little Alabama itself could have done to stop it. Moore also failed to show that these ads impacted the election to any significant degree; Moore’s supporters were quite vocal in their public support for him despite the sexual allegations.

Alabama Doesn’t Want Any More of Moore

Moore’s final argument is that the allegations of sexual impropriety with underage girls are false. Moore claims he took a polygraph test that shows he did not have sexual contact with those individuals and that the sexual allegations harmed his campaign. I write that Moore “claims he took a polygraph test” because Moore never attaches the results of the polygraph test to his lawsuit. Instead, he throws in an affidavit where Moore claims he took a polygraph test.

However, a court would still not entertain Moore’s claim because judges generally do not get involved with election issues. Whether a 40 year old claim is enough to change a voter’s mind is up to each voter. Judges are only concerned with election procedure; the actual campaign issues are not a judicial concern.

Moreover, Moore has not shown that the sexual allegations actually impacted his race. Voters could have been turned off by any number of comments that Moore made during his campaign, regardless of alleged sexual misconduct. Favorites include: The last time America was great was when slavery existed; the Moore family is not anti-Semitic because their lawyer is a Jew; Moore’s refusal to debate his opponent, Doug Jones; or his conduct while Chief Justice of Alabama. If Moore wants to litigate the election, he should also address the laundry list of other controversies he created. Perhaps that’s why he lost.

Arguments Heard in LGBT Rights Case: Will the Supreme Court Take the Cake?

The Supreme Court has heard the oral arguments on the first substantial LGBT rights case of since Neil Gorsuch was appointed as a Justice. The case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission revolves around a baker who refused to sell a wedding cake for a gay couple’s wedding all the way back in 2012.

The baker, Jack C. Phillips, cited his own religious beliefs that homosexual marriage is wrong and his making a cake for the wedding would “displease God” and send the message that he supported the nuptials. The couple was denied their wedding cake, an experience they have described as one of extreme humiliation–something that broke them down to tears. They originally did not even consider that there may be laws protecting them based on sexual orientation, not altogether surprising given the long standing complete lack of protection for the LGBT community.

The couple eventually sued, refusing service based on sexual orientation violates Colorado discrimination laws known as the Colorado Anti-Discrimination Act. Phillips has lost an argument that the discrimination laws violate his First Amendment freedom of speech and freedom of religion rights at every level of the courts thus far, losing before an Administrative Law Judge, the Colorado Civil Rights Commission, and the Colorado Court of Appeals.

The Supreme Court of Colorado had no interest in hearing a further appeal of the case. This has left him appealing his case to the highest court in the land, the Supreme Court accepted the case and has just heard oral arguments–this means the lawyers for both sides (and a Trump Administration lawyer appearing on behalf of the baker) answered questions regarding the arguments they had already submitted in writing to the Supreme Court.

The arguments from Phillips essentially boil down to two arguments. First, his cakes (with nothing written on them) are free speech expression in the vein of a statue and Colorado law cannot compel him to “speak.” Second, the law forces him to act against his religious beliefs in violation of the Free Exercise Clause of the First Amendment. These are the two questions which the Supreme Court have agreed to answer–whether the Colorado discrimination laws on sexual orientation violate the Constitution in these ways.

The idea that religious belief can allow somebody to discriminate against others is a large ask and, if the Supreme Court were to make a broad enough ruling on the issue, could be a dangerous hole in civil rights law in general. For instance, as an extreme example, imagine a person who refuses to hire women based on religious belief that men and not women should work or that a woman needs a man’s permission to work. This situation, although not impossible, would take a broader ruling on the issue than the Supreme Court is likely to issue.

LGBTIt’s important to note that even Phillips himself is not arguing that for a general right to discriminate, although some particularly conservative parties who have filed amicus briefs (non-party memorandums on the case) are, but rather a loophole in discrimination law based on religious belief. At the very least the LGBT community fears that it will, even in a narrow ruling, lose some the ground it gained in the 2015 Obgerfell (ruling same-sex marriage bans unconstitutional) if everybody in a wedding from the makeup artist to the baker to the chef can refuse service on religious grounds. A ruling in favor of Phillips could also lead to challenges to sexual orientation discrimination laws across the nation, capitalizing on a ruling Colorado’s law is unconstitutional to require redrafting of these laws at a minimum.

With this in mind, the case has extreme attention from parties on both sides of the issue with around 100 parties weighing in with memorandums to the Supreme court–including the Trump Administration coming down against LGBT rights. The Trump administration’s position backs Phillips’ “cake as speech” arguments but does not address the Free Exercise Clause arguments. With the matter finally coming to a head, let’s look at the Supreme Court’s reaction here, the merits of the arguments, and what is likely to happen here.

The Arguments Before the Supreme Court

The situation as the case went into oral arguments was a common one for LGBT issues, and many issues in general appearing before the Supreme Court. The court was clearly split 4-4 along ideological lines with Justice Kennedy almost certainly representing the swing vote on the issue. Justice Kennedy has authored most pro-LGBT rulings the Court has passed, including Obgerfell, but also is known to have a strong tendency towards protecting religious rights.

Phillips’ lawyer and the lawyer for the Trump administration argued to the Court that religion should allow a loophole to discrimination laws on all grounds except race, quite a ambitious position considering the state of the law we will discuss later in the article. However, Phillips’ lawyer limited his argument to making custom cakes as opposed to providing pre-made cakes–citing a difference in the level of creativity involved to support an assertion that making a cake is protected speech. This an odd position, not only is the idea that a commercial cake is speech a hard sell, there’s no evidence that the couple asked Phillips to make a cake as opposed to just sell them a premade one.

The assertion that cake making was a form of protected expression, creative expression as opposed to a more utilitarian food making practice, faced a fair a bit of skepticism from the court as well. The argument that a custom wedding cake is a temporary sculpture faced criticism as Phillips’ lawyer also argued that a chef, makeup artist, jeweler, hairstylist, or tailor at wedding would not rise to the level of expression of a wedding cake baker. This led to criticism of the position by several of the Justices. Justice Breyer stated that a ruling in favor of Phillips had the potential to “undermine every civil rights law” while Justice Kennedy said that such a ruling would essentially amount to granting almost every business involved in a wedding the right to boycott gay marriage. Phillips’ lawyer, in response to questioning from Justice Kennedy, tried to argue the issue as exclusive to custom cakes.

The Justices questioned cakes as a creative outlet, wondering if they were more based on the utilitarian needs of eating them. While Justice Breyer floated Phillip’s lawyer a line, discussing the protection extended to utilitarian architecture decision, Phillips argued that buildings were more functional–likely fearing a follow-up line of questioning regarding housing discrimination that might be allowed by a ruling taking this line of reasoning. Justice Breyer responded “So, in other words, Mies or Michelangelo…is not protected when he creates the Laurentian steps, but this cake baker is protected when he creates the cake without any message on it for a wedding? Now, that really does baffle me, I have to say.”

Kennedy, the linchpin vote on the issue, described the potential of allowing a boycott of gay weddings as an “affront to the gay community.” However, he also argued that tolerance of religious beliefs is equivalent in value to tolerance of sexual orientation–leaving little clues as to what his ultimate decision on the issue will be.

The Merits of the Arguments

On the face of it, Phillips’ has a losing argument. There are two substantial hurdles the case would need to overcome. First, whether baking a custom cake is speech in the first place. Second, whether the discrimination laws are designed in a way that merits a strict look at their constitutionality. The first is a question that the case may not be able to overcome, but it is nowhere near the difficulty of the second hurdle.

The general rule is that laws that apply neutrally to all parties and without regard to content of speech, such as Colorado’s discrimination laws, are constitutional even in the face of an incidental effect on certain religious (or other) views. This is a well established element of constitutional law and one that was fiercely defended by the late Justice Scalia–discussing the alternative as a situation where “every citizen [becomes] a law unto himself. The laws do not target religious business, they place discrimination rules on everybody who chooses to enter the commercial marketplace. This does not change if you sell an artistic product.

The Supreme Court itself ruled in 1990 that the Free Exercise Clause of the First Amendment does not apply when a law is neutral and generally applicable. Some critics on the case have argued that a previous Colorado ruling, upholding a bakers refusal to sell a cake including an anti-LGBT message from Leviticus, undermines the neutral application of the law. However, this case did not deal with sexual orientation based discrimination at all. It dealt with religious discrimination and does not impact a neutral application analysis. What’s more, the bakers in that case did not refuse service to any given religion as a whole–they simply refused to write a message they found offensive. The case as a whole has no relevance whatsoever to sexual orientation based discrimination. Colorado’s law applies neutrally and without exceptions, an important fact as exceptions to the law could undermine a constitutionality analysis.

Even assuming a cake is artistic expression, the cake itself may be protected by the First Amendment but the sale of the cake is not. The argument that sale to a gay wedding is speech to the public implying you support gay marriage is a very weak one. To draw a comparison to an older case, in 1968 the Supreme Court called a barbeque stand in Colorado describing racial discrimination laws as a violation of their anti-integration beliefs as “patently frivolous.” If you won’t sell to somebody based on race, gender, sexual orientation or any other protected characteristic you have the option that Phillips ultimately took, don’t enter the market. Since the case was brought against him, Phillips has stopped selling custom wedding cakes.

What Might the Supreme Court Do?

There is an extra element here beyond the 1968 Supreme Court case, free exercise of religion. This is not a strong argument on the merits, but it does have a history of making a difference in Supreme Court cases and particularly for Justice Kennedy. Just a few years ago in 2014 we saw Burwell v. Hobby Lobby decide that for-profit corporations could be exempted based on religious objection if a law could be done in a less restrictive means while still furthering the government’s interest. This is less applicable here, as Justice Kennedy noted a loophole of the sort Phillips’ seeks could lead to a near complete undermining underlying government purpose of the protections of Colorado anti-discrimination law and the Obgerfell ruling by allowing a boycott of sales and services for gay weddings. However, it is important to keep this sort of case in mind as it is not impossible that the Supreme Court may go this direction again.

Other recent court rulings may support the couple here. Earlier in 2017, the Washington State Supreme Court ruled that flower arrangements don’t qualify as protected speech–there’s a real potential the Supreme Court may go the same way on cakes.

So what will the Supreme Court do? They almost certainly will not rule the Colorado discrimination law to be unconstitutional. The actual ruling will come down to what Justice Kennedy decides and could go several ways. Justice Kennedy has voiced some support for the position of the Free Expression Clause as a potential loophole to discrimination laws. A general loophole to discriminate against all LGBT persons based on religion is so fundamentally opposed to the state of the law that it is incredibly unlikely to occur. However, there is a possibility that the Court will provide a narrower loophole exclusive to weddings. This still runs counter to the existing state of the law, but given the positions taken by the Court in oral arguments it is a possibility.

Justice Kennedy has also expressed disappointment with the treatment of religion by the Colorado Civil Rights Commission, specifically the fact the Commission described the use of religion to justify discrimination as “despicable.” The Supreme Court may end up choosing to send the case back down to the lower courts with some level of guidance.

Finally, there is a very real possibility, given the state of the law and Justice Kennedy’s response in oral arguments and history on LGBT rights cases, that the Supreme Court will simply hand Phillips his final loss. The truth is that any of the above rulings, besides simply telling Phillips he has no case, would represent a substantial expansion on the current treatment of the Free Exercise Clause–one with the potential to seriously undermine both LGBT rights and civil rights in general. Even drawing the outline around what sort of commercial actions count as speech could be a substantial change in the state of the law, turning everyday business transactions into protected speech. For now, we will have to wait and see how the Supreme Court cuts this cake.